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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply... (More)

About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply. My long, strange career trip has included law and management jobs in two Fortune 50 companies, before founding the legal search and staffing firm Cushing Group, Recruiters. I've lectured on negotiation and settlement strategy, and teach graduate courses at Golden Gate University (Adjunct of the Year for a doctoral seminar on business, law and society). Illinois, Texas and California (Inactive) admitted me to law practice; I hold JD and MBA degrees from the University of Illinois, and a BGS from the University of Michigan, with Distinction. There -- Go Blue! Personally, my daughters are a lawyer in NY, and a pre-med student in NM - their lives-and-times often animate these columns. I'm active in animal advocacy matters, having led a citizen team that took Alameda's city animal shelter to a non-profit operation - we saved $600K annually and the lives of some 700 companion animals/year vs. the City's best alternative. I'm delighted with that success. My family has re-homed 144 foster animals over many years; we host four boisterous border collies of our own. Mostly for humane movement efforts, I was nominated for GQ magazine's 2009 Better Men, Better World Award. You may notice that many of my rants relate to critter issues. In addition to the Raucous Caucus blog, I frequently contribute to The BARK magazine, and am a proud Moderator emeritus on the popular news and humor website www.Fark.com. I prefer scotch over imported beer (Hide)

Mr. Votes Goes to Washington (but not quite far enough)

Uploaded: Nov 23, 2013

Amidst typically strident DC hyperbole, the Senate this week took a significant step toward getting things done. It amended its filibuster rules to overcome their evident abuse (but calling that a "nuclear option" puts it right in there among fiscal cliffs, freedoms-to-farm, and some might say, affordable care). It evoked the expected dire predictions, but I just don't see it. Partisan play-making aside, this is just sound governance ? whoever is in charge. In fact, they should have done more to limit this dilatory 'minority rules' device.

The filibuster has a long if undistinguished history, dating from the Roman Senate. When Cato overused the procedure in an attempt to thwart a proposal that mattered to Julius Caesar, the Senator was promptly flung into the hoosegow. Both 'filibuster' and 'hoosegow' are derived from Spanish terms, the former related to piracy.

In US Senate history, the filibuster was traditionally used quite sparingly among the gentlemen thereof. It required that the filiblusterer actually take the floor and talk for as long as he could, to delay action on an appointment or a piece of legislation, and at least guarantee that the minority's arguments would be adequately heard, in newsworthy fashion. It was justified in part because the House has no similar device to allow dearly-felt, if unpopular, positions to be aired. Decorum ruled; it was understood that the device would only be employed in extreme cases ? and so it was.

The Senate's current version of the rule requires 60 votes to invoke "cloture" and end debate, and force a majority vote. Remarkably, it also doesn't even require the filibusterer to actually speak, but only threaten to do so. The upshot is that, in a closely divided body, the minority party can effectively hamstring the majority by any member's merely expressing intent to speak, and not actually going to any effort to do so, a la Jimmy Stewart's famous, fictitious gambit to save his name and his boys' camp proposal.

The most famous instance in my memory involved 19 Senators who talked for 57 days to resist passage of the Civil Rights Act of 1964. Said GA Senator Russell: "We will resist to the bitter end any measure or any movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states." That effort was partially successful, as a weakened bill eventually achieved the then-67 votes needed for cloture.

The filibuster has, however recently become a cornerstone of parliamentary maneuvers intended to hamstring the Obama Administration's attempts to appoint Executive Branch leaders, and federal judges. Lest anyone remain alive who considers recent history to be political business-as-usual, appointment filibusters have been used 168 times in some 226 years of US history (less than once/year, obviously). 82 of those occasions have occurred since Mr. Obama assumed office in 2009. That's more than 16 times/year, meaning that the previous frequency was actually much less: 0.38 times/year. Put yet another way, the current Republican Senate minority invoked it 43 times more often than all of its predecessors, of either Party.

As your Mama likely told you, if you abuse a privilege, you risk losing it. That's what happened this week, as the Dem majority finally changed the Senate's rules to require only a majority vote for cloture, and only on Executive and most judicial appointments. The old rules rule on legislation, and Supreme Court nominees --including the "threat is sufficient" requirement. Some nuke. Some explosion.

Most of the arguments against the change revolve around its formerly exceptional use, as well as dark threats that the Dems will miss the process if/as/when they're back in the minority. Of course, that would require both a GOP Senate majority AND a Republican President. Setting aside all the things the GOP is doing to ensure THAT confluence never occurs, the change is still good government, regardless of who's in power.

The filibuster was never meant to convert the 'advise and consent' role of the Senate on nominations into 'refuse and constipate' according to the minority's fond wishes. Elections ought to mean something ? however they come out ? and the Chief Exec should be able to appoint the team with a minority Party check, but not a veto, in the process. Similarly with sub-Supreme judges, albeit they enjoy lifetime tenure. The issues ought to go to competency, but not so much to political philosophy, and the new rules continue to allow an adequate airing of those concerns.

Indeed, I would go further, and remove the 'mere threat' criterion. If it's important enough to filibuster, then that purpose is served by actually airing the arguments and monkey-wrenching the legislative process. The arguments on the merits would be exposed to a public sniff test that's now absent, and the actual efforts required to talk incessantly would be good political theater all by itself. Moreover, such a requirement would mean that more matters would come to a majority vote in public, rather than die for want of a 60-vote super-majority. Senators then can be better judged by their actions. That's improved transparency, and better accountability.

Ending the practice of nominees, who have after all, agreed to participate in public service, being hung out to dry as pawns to achieve other political ends (like Sen. Graham's threat to hold-up nominations until he's satisfied on Benghazi), is an unfettered Good Thing. Hopefully this half-way Senate will like the new system well enough to broaden it to its appropriate conclusion. Mr. Smith, along with Joanne Q. Public, would approve.

Posted by Little Freddie,
a resident of Danville,
on Nov 23, 2013 at 6:17 pm

Sir! Courageously stated! Your Wikipedia descriptions are clear, except your reference to Cato using a process derived from a Spanish name, and your bold and provocative claim really sets you apart from the creampuff casper milquetoasts who have been too cowardly to take a position on this monumental decision. Sir, I tip my beanie to you.

Posted by TL Nelson,
a resident of Danville,
on Nov 24, 2013 at 7:00 pm

The filibuster rules in the Senate were in place for a good reason ... to prevent the "tyranny of the majority" and to protect the interests of the minority. A recent WSJ opinion piece states the case quite well ... without protections for the minority, the Senate is like "two foxes and an hen voting on what to have for dinner".

The underlying reason for the increase in obstructionism in our government (as evidenced by the use of filibuster rules) is the huge and growing rift in political ideology among the American people.

The Democrat party has, over the past 20 years, become hijacked by Marxists. It has become in every way, except by name, the American Communist Party. Their agenda is to establish total government control of our lives and economy, to limit personal freedoms and choices, to punish the most productive members of our society and reward the least productive members. We already see the tendency of Democrat rulers to declare political opponents "enemies of the state" and use government agencies to hunt them down and relentlessly harass and bully them into submission.

On the other side of the this political divide are the Americans who still believe in the principles on which out nation was founded ... limited government, individual responsibility, personal freedoms protected by the Constitution, free enterprise, and a steadfast belief in fiscal responsibility.

The change in the Senate filibuster rules is another step towards the Democrat agenda of establishing a Marxist regime. The Obama presidency, in its first five years, has done irreparable damage to this nation and increased the nation's political divide to a scale unprecedented since the Civil War. This latest action brings our deeply divided nation one step closer to another tragic civil conflict.

TL Nelson is absolutely right about "the huge and growing rift in political ideology among the American people." He also unwittingly demonstrates in graphic fashion what the basis of that rift is: the loopy, paranoid and fanatical ideology of the far right which has hijacked a Republican party which has become disconnected from reality.

Posted by Doug Miller,
a resident of Country Fair,
on Nov 25, 2013 at 11:04 amDoug Miller is a registered user.

"The filibuster rules in the Senate were in place for a good reason ... to prevent the "tyranny of the majority" and to protect the interests of the minority."

That single idea should have been evaluated by Mr. Cushing or explained by TL Nelson because it is at the heart of this issue. The constitution structures the senate to be purposely different, slower and more deliberative than the house. The senate rules exist toward that end. The need for 60, formally 67 votes was reason to seek compromise with the minority party. With this vote, we are on a path toward creating nothing more than a smaller version of the house.

There will be consequences to this historic change. Now it will be easier to vote to eliminate filibusters on other matters like Supreme Court nominees and legislation. There is no going back. And someday when the other party has a majority in the senate, people like former senators Obama and Reid will wish they had followed their own advice when they spoke on the matter in 2005.

@Doug: I tried to make the minority rights point, here: " ... to delay action on an appointment or a piece of legislation, and at least guarantee that the minority's arguments would be adequately heard, in newsworthy fashion. It was justified in part because the House has no similar device to allow dearly-felt, if unpopular, positions to be aired."

A few more points: there is nothing Constitutional about the filibuster. It is purely a creature of the Senate rules (the House could make such rules, as well). As such, it has been changed before, by a simple majority vote on the rules. The abuse of that extraordinary process by the GOP, as noted, led to the current change. Had that abuse not occurred, it 1 -- would never have been brought to a vote, and 2 -- if it had been, the vote would have failed. They simply overplayed their hand, by playing the game in a way different from how it was intended. So they got it slapped.

Also, both comments ignore the fact that the rule was changed ONLY for Executive and some judicial appointments, and NOT for legislation. The "minority rights" argument pales dramatically when all the Prez is trying to do is to appoint His Own Team within His Own Branch of the government. What rights are being vindicated then? The pattern of abuse demonstrates that these filibusters were all about hamstringing the Administration from carrying out its legitimate governmental functions, as it was duly elected to do. Their other, ulterior use, as a gambit to force a different, unrelated result is also utterly unfair to the nominees.

Finally, the argument that we shouldn't change this badly over-misused part of the rule, because it'll then be easier to change it for other things where it actually serves a purpose, is far-fetched in context. The use of the filibuster on whether to enact legislation is a very different matter from whether to consent to an Executive appointment. I believe the Senators understand that, which is exactly why the change was so limited. THIS change was needed to address a specific problem.

As I indicated, I would have gone further to require more than a mere threat to vindicate minority rights on legislation. I think that makes for a better, more public filibuster wherein those minority rights can be fully aired, and perhaps, actually vindicated via principle, or compromise, as in 1964.

Posted by TL Nelson,
a resident of Danville,
on Nov 25, 2013 at 1:47 pm

To Huh? .... It is a sad commentary on the state of our nation when concepts such as the U.S. Constitution, free markets, personal responsibility, and fiscal prudence are called a "loopy, paranoid and fanatical ideology". What is really more fanatical, the principles on which our nation was founded and under which it has flourished for more than 200 years or the Democrat agenda which directly opposes and seeks to undermine these principles?

Posted by Doug Miller,
a resident of Country Fair,
on Nov 25, 2013 at 1:56 pmDoug Miller is a registered user.

"I tried to make the minority rights point, here: " ... to delay action on an appointment or a piece of legislation, and at least guarantee that the minority's arguments would be adequately heard, in newsworthy fashion."

So, letting the minority voice their concern is enough. There should be no need for compromise or for needing some minority votes. Or for finding nominees who would be acceptable to both sides.

As Mr. Cushing notes, in the Civil Rights Act of 1964, the 57 day filibuster led by 18 Democrats, did result in a compromise that led to passing the bill. And that was a good thing. With support from both parties, we establish laws that are more acceptable and settled to citizens. It is too bad that Democrats did not try to fashion a healthcare bill that would have attracted Republican votes. Both sides would be working hard to make that bill a success today. And that would be a good thing.

The data cited by Mr. Cushing of the so-called abuse of the filibuster is similar to the data showing how Senator Reid has abused the amendment process in the senate, thereby preventing the minority from bringing any amendments up for consideration as a bill is being considered. One study published in late 2010 indicated that Senator Reid had shut out consideration of minority sponsored amendments 44 times in his first three years as majority leader compared to just 36 similar examples going back to 1977 and the six previous majority leaders. Would bet that if a count were taken today, that "44" would be about 100. Just a guess though.

Posted by Doug Miller,
a resident of Country Fair,
on Nov 25, 2013 at 4:12 pmDoug Miller is a registered user.

"Gorsuch was worse."

Worse than Hitler? Surely you jest. This comment renders everything you say as suspect. Very disappointing. Just as I was coming to regard your forum as serious and principled. And respectful. What am I missing?

Anne Gorsuch was an interesting and perhaps an ironic example for this particular thread as provided by Mr. Cushing. According to an her obituary published in the New York Times, "Her confirmation was held up for months as senators debated her qualifications and questioned her agenda..."

Posted by Tom Cushing,
a resident of Alamo,
on Nov 25, 2013 at 4:34 pm

Yes I jested, lest I be forced to close down this conversation in compliance with Godwin\'s Law. Web Link . If I understand correctly, then, the appointment survived a filibustery safety valve, after which she was unanimously confirmed by the Senate -- and then resigned in disgrace three years later?

Posted by Doug Miller,
a resident of Country Fair,
on Nov 25, 2013 at 6:02 pmDoug Miller is a registered user.

Personally, I like the quote from you referenced website that reads,
"By 2007, The Economist had declared that ?a good rule in most discussions is that the first person to call the other a Nazi automatically loses the argument.?"

You have encouraged this thread to go off on a irrelevant tangent. You only seem interested in talking with members of your own tribe. Having made your point, you have succeeded in shutting down this conversation.

Posted by Tom Cushing,
a resident of Alamo,
on Nov 26, 2013 at 6:21 am

Doug: thanks for the vote of confidence in my ability to steer this conversation, but it may be overstated. I put out an opinion in the blog, and folks respond. I participate in the ensuing discussion, but my role in directing its course is limited. I Can eliminate or edit, but I mostly choose not-to, as that causes more problems than it solves. And some responses just don't merit any reply -- I don't think an attaboy to Little Freddie (this week), for example, would add much.

It's been more an open-mike forum than a seminar, but I'll see what I can do to encourage more interplay.

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